Commentary on Article 283. Illegal Handling of Radioactive Substances, Radioactive Waste, and Nuclear Materials of the Criminal Code of the Republic of Kazakhstan
1. Illegal acquisition, storage, transportation, use, transfer, processing, destruction, dispersal or burial of radioactive substances, radioactive waste or nuclear materials —
shall be punishable by a fine in an amount of up to three thousand monthly calculation indices, or corrective labour in the same amount, or restriction of liberty for a term of up to three years, or imprisonment for the same term, with or without confiscation of property.
2. Illegal sale of radioactive substances, radioactive waste or nuclear materials, as well as illegal acquisition, storage or transportation of radioactive substances, radioactive waste or nuclear materials for the purpose of sale —
shall be punishable by imprisonment for a term of two to six years, with or without confiscation of property.
3. Acts provided for in Parts One or Two of this Article, committed by a criminal group or resulting, through negligence, in the death of a person or other grave consequences —
shall be punishable by imprisonment for a term of three to eight years, with or without confiscation of property.
The public danger of the crime consists in the fact that illegal handling of radioactive substances, radioactive waste and nuclear materials is capable of causing harm to individuals and society due to the inherent potential danger of radioactive materials.
The object of the crime under consideration is public safety in the sphere of circulation of radioactive substances, radioactive waste or nuclear materials.
The additional objects are human life and health, property, radiation and nuclear safety.
Radiation safety is the state of the radiation environment ensured by a set of measures that limit radiation exposure to personnel, the population and the environment in accordance with established standards.
Nuclear safety is a property of a nuclear facility that ensures, with a certain degree of probability, the impossibility of a nuclear accident.
The subject matter of the crime consists of radioactive substances, radioactive waste or nuclear materials. Pursuant to Article 1 of the Law of the Republic of Kazakhstan dated January 12, 2016, “On the Use of Atomic Energy”, these include:
radioactive substances — any materials of natural or technogenic origin, in any aggregate state, containing radionuclides (subparagraph 24) of Article 1 of the Law);
nuclear materials — materials containing or capable of reproducing fissile (splitting) radionuclides (subparagraph 34) of Article 1 of the Law). Nuclear materials include uranium (depleted, natural or enriched, including uranium-238), plutonium and thorium, which may exist in the form of a metal, alloy, chemical compound or concentrate and be used to obtain atomic energy and produce nuclear weapons.
Radioactive waste means radioactive substances, nuclear materials or radionuclide sources with radionuclide content exceeding the clearance level, the further use of which is not envisaged (subparagraph 25) of Article 1 of the Law).
Nuclear materials acquire the status of radioactive waste when they:
are not subject to further use;
enter the environment, for example, as a result of an accident or the commission of a crime, and cannot be recovered from it for the purpose of further use;
are a component of a nuclear facility and cannot be removed from it if such a facility is regarded as waste, where its life cycle is terminated and disposal is impossible for technical or other reasons;
may become radioactive waste as a result of the use of nuclear weapons.
The objective element of the crime is characterised by a number of alternative actions, such as the illegal acquisition, storage, transportation, use, destruction or burial of radioactive materials, which collectively constitute their illegal handling.
Handling of radioactive materials means administrative and operational activities related to the manufacture, supply, receipt, possession, storage, use, transfer, transportation, maintenance, processing and disposal of radioactive materials.
The illegality of handling radioactive substances, radioactive waste and nuclear materials means the commission of the above-mentioned actions in violation of the current national legislation governing the circulation of radioactive substances, radioactive waste or nuclear materials.
Acquisition means obtaining possession of radioactive substances, radioactive waste or nuclear materials by any means other than theft or extortion, which are regulated by a separate Article of the Criminal Code.
Storage should be understood as the temporary placement of radioactive substances and radioactive waste in specially prepared locations (including special containers), allowing for their retrieval for use, processing or disposal.
The concept of storage of radioactive waste is closely related to the concept of establishing storage facilities, which is a stage of activity preceding actual storage and includes making a decision on the construction of storage facilities, selecting the location for their placement, allocating a land plot, preparing supporting materials and designs, as well as carrying out construction and commissioning the facilities.
Transportation of radioactive substances, radioactive waste and nuclear materials means the movement of such materials by any means within the country (carriage, dispatch, delivery by courier, etc.). If they are transported outside the Republic, the act is classified under Article 286 of the Criminal Code, “Smuggling of Items Withdrawn from Circulation or Items Whose Circulation Is Restricted”.
Use should be understood as the application of radioactive substances, radioactive waste and nuclear materials both for their intended purpose and for other purposes.
Transfer means the gratuitous alienation by the owners of radioactive substances, radioactive waste or nuclear materials into the possession of another person (for storage, temporary use, etc.), whether on a paid or gratuitous basis, permanently or temporarily.
Processing of radioactive waste means technological operations performed for the purpose of changing the physical form, aggregate state and/or physical and chemical properties of radioactive waste for its subsequent conditioning.
Destruction of radioactive materials should be understood as damage to them or disruption of their integrity.
Burial means the placement of radioactive materials for permanent storage. It may be carried out by any means (burying in the ground, dumping at the bottom of a sea or river, placing in nuclear repositories, etc.).
Dispersal of radioactive materials means their distribution in small particles across numerous locations, resulting in a reduction in their concentration and the loss of their radiation properties. In this case, the intensity of radiation decreases to such an extent that these materials can no longer be collected and used for their intended purpose. Dispersal may be carried out by releasing radioactive gases into the atmosphere, pouring liquid radioactive materials into water bodies, scattering powder over a surface, as well as mixing radioactive materials with municipal or industrial waste and adding them to raw materials from which products are manufactured.
By its legal structure, the composition of the crime is formal. The crime is considered completed from the moment any of the actions specified in the disposition is performed.
The subjective element of the crime is characterised by direct intent. The person is aware of the public danger of illegal handling of radioactive substances, radioactive waste and nuclear materials, foresees the possibility or inevitability of socially dangerous consequences and desires their occurrence.
The subject of the crime under consideration is a sane natural person who has reached the age of 16.
Part 2 of Article 283 of the Criminal Code provides for criminal liability for the illegal sale of radioactive substances, radioactive waste or nuclear materials, as well as the illegal acquisition, storage or transportation of radioactive substances, radioactive waste or nuclear materials for the purpose of sale.
Sale of radioactive materials means any illegal methods of their disposal or transfer (sale, gift, exchange, payment in settlement of a debt, lending, etc.).
Part 3 of Article 283 of the Criminal Code establishes criminal liability for acts provided for in Parts 1 and 2, committed by a criminal group or resulting, through negligence, in the death of a person or other grave consequences.
The concept of a criminal group is provided in subparagraph 24) of Article 3 and Part 3 of Article 31 of the Criminal Code.
Causing the death of a person through negligence is expressed in the deprivation of the victim's life as a result of illegal handling of radioactive substances, radioactive waste or nuclear materials.
Other grave consequences should be understood as causing grievous bodily harm to a person; mass illness, infection, irradiation or poisoning of people; deterioration in the health of the population and the state of the environment; and other consequences indicating the severity of the harm caused.
Both the death of a person and other grave consequences must be causally related to the act committed.
The act provided for in Part 1 of Article 283 of the Criminal Code belongs to the category of medium-gravity crimes.
The acts provided for in Parts 2 and 3 of Article 283 of the Criminal Code belong to the category of serious crimes.
Commentary of 2021 to the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, member of the working group on reform of the law enforcement system under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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